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Gaddis v. Wilkerson

Court of Appeals of Mississippi

January 9, 2018

TRACEY CAROL GADDIS APPELLANT
v.
BENNIE RICHARD WILKERSON, JR. APPELLEE

          DATE OF JUDGMENT: 10/06/2016

         SCOTT COUNTY CHANCERY COURT HON. J. LARRY BUFFINGTON TRIAL JUDGE

          ATTORNEY FOR APPELLANT: WILSON H. CARROLL

          ATTORNEY FOR APPELLEE: JAMES F. NOBLE III

          BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.

          FAIR, J.

         ¶1. This appeal involves the narrow issue of custody-schedule modification. Richard Wilkerson originally sought to remove custody of his son from his ex-wife, Tracey Gaddis, but the chancellor increased his custody time instead. Tracey appealed. After careful review, we find the chancellor's decision was supported by substantial evidence. Accordingly, we affirm.

         FACTS

         ¶2. Richard and Tracey married in 2002. They had one child together - Logan[1] - born in 2005. The parties divorced in 2008 on the ground of irreconcilable differences. In the child custody and property settlement agreement, Richard and Tracey were granted joint legal and physical custody of their son, with detailed periods of custody. The chancellor granted Tracey custody during the weekdays, except for Tuesday from 3 p.m. to 8 p.m, when Logan would be with Richard. The agreement also stated that Richard would have Logan every other weekend and at the opening of deer season, beginning at age five. Finally, the agreement divided holidays and special occasions between the parties.

         ¶3. In 2013, Richard and Tracey entered into their most recent agreement amending their preceding child custody and property settlement agreements, all of which have consistently affirmed that their custody is both joint legal and joint physical. The modified agreement granted Richard and Tracey equal time with Logan during the summer on a week-on, week-off basis. The agreement further stated that Richard would have Logan every other Wednesday from 5:30-7:30 p.m. (for church services and related activities) and every first, third, and fifth weekend, from Thursday after school until the following Monday. And the agreement provided additional details to Richard and Tracey's holiday and special occasion schedules.

         ¶4. On April 6, 2016, Richard filed a petition to modify the amended child custody and property settlement agreement. Richard sought sole physical custody, claiming a material change in circumstances had occurred that adversely affected Logan. In the alternative, he sought equal time with Logan on a year-round basis during the school year. Tracey filed a motion to dismiss, which the court denied.

         ¶5. The court held a hearing on Richard's petition. Both Richard and Tracey testified, and Logan was interviewed in the chancellor's chambers - off the record but with the court reporter present. At the conclusion of the hearing, the chancellor determined that there was no material change in circumstances warranting a change of custody. So he denied Richard's request for sole physical custody. He also denied Richard's alternative request for equal time during the school year. However, the chancellor found modification of the custodial periods was in the best interest of the child, noting that the custodial periods were "in the nature of a visitation schedule." He changed Richard's alternating Wednesday evening custodial periods, provided to end at 8 p.m., to overnight. He also directed that spring break would be divided, with alternating four and three day periods for each of the parents. The chancellor also found that Tracey should be allowed to see Logan on his birthday, if the birthday falls within Richard's custodial period.

         STANDARD OF REVIEW

         ¶6. Our review of domestic relations matters is limited. Chesney v. Chesney, 849 So.2d 860, 862 (¶8) (Miss. 2002) (citing Montgomery v. Montgomery, 759 So.2d 1238, 1240 (¶5) (Miss. 2000)). The chancellor's findings of fact will not be disturbed on appeal if they are supported by substantial credible evidence. Carter v. Carter, 204 So.3d 747, 756 (¶37) (Miss. 2016) (citing Marascalco v. Marascalco, 445 So.2d 1380, 1382 (Miss. 1984)). We will not reverse the decision of a chancery court unless the chancellor abused his or her discretion, was manifestly in error, or applied an erroneous ...


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